In re Civil Commitment of Benson

• Decision Date: 21 October 2019
• Docket Number: A19-0666
• Citation: In re Benson, A19-0666 (Minn. App. Oct 21, 2019)
• Parties: In the Matter of the Civil Commitment of: Michael Dale Benson.
• Court: Minnesota Court of Appeals

In the Matter of the Civil Commitment of: Michael Dale Benson.

A19-0666

STATE OF MINNESOTA IN COURT OF APPEALS

October 21, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3(2018).

Affirmed

Smith, Tracy M., Judge

Commitment Appeal Panel

FileNo. AP17-9137

Michael Dale Benson, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, R. J. Detrick, Assistant Attorney General, St. Paul, Minnesota (for respondent Commissioner of Human Services)

Chad Michael Larson, Douglas County Attorney, Alexandria, Minnesota (for respondentDouglas County)

Considered and decided by Smith, Tracy M., Presiding Judge; Reyes, Judge; and Florey, Judge.

UNPUBLISHED OPINION

SMITH, TRACY M., Judge

On appeal from the Commitment Appeal Panel's (CAP's) denial, without an evidentiary hearing, of appellantMichael Benson's petition for a discharge from his commitment to the Minnesota Sex Offender Program (MSOP) as a psychopathic personality, Benson argues that (a)he made a prima facie case that he does not have a sexual disorder; (b) using his newly diagnosed mental illness as a basis for continuing his commitment violates res judicata; (c) the CAP failed to view the record in the light most favorable to appellant; and (d) his continued commitment to MSOP deprives him of due process of law.We affirm.

FACTS

In October 1989, Benson pleaded guilty to first-degree criminal sexual conduct and was incarcerated.As part of a presentence investigation, Benson acknowledged having committed at least five sexual assaults besides the offense to which he pleaded guilty.Benson also detailed an extensive sexual history.Later, Benson denied committing any sexual offenses and claimed a less extensive sexual history.In 1993, Benson was indeterminately committed to MSOP as what is now known as a sexual psychopathic personality (SPP).¹Benson appealed, and this court affirmed.In re Benson, No. C0-93-1357, 1993 WL 459840(Minn. App.Nov. 9, 1993).²Benson refused to participate in treatment throughout his incarceration and commitment.

In January 2017, Benson petitioned the Special Review Board(SRB) for, among other things, a full discharge from MSOP.As part of those proceedings, Dr. Jennifer Tippett interviewed Benson and prepared a Sexual Violence Risk Assessment (SVRA).The SVRA states:

[T]hroughout the record, [Benson's] self-report [of his sexual history] has changed to the extent that he is not considered a reliable historian. . . .Overall, the reader is cautioned given [Benson's] lack of credible reporting, and the lack of corroborating evidence (i.e. specialized assessments, treatment records, etc.) this report and the resulting opinion are based on the limited information available to the undersigned.

The SVRA does not diagnose Benson with a sexual disorder but does diagnose him with narcissistic personality disorder.The SVRA concludes:

To the ultimate question of whether [Benson] meets all criteria needed for a [discharge], . . . there is much to suggest that he may meet criteria for a reduction in custody level.The certainty of such a statement is hindered by a lack of objective information concerning [Benson's] sexual risk.If [Benson] did in fact commit a string of legally undetected stranger rapes prior to his commitment at MSOP, this would ultimately alter his treatment needs, dynamic risk level, and weigh heavily in the opinion of this evaluator.In sum, absent any evidence or objective measure of sexual arousal or transparency it is exceedingly difficult to state whether [Benson] meets the criteria for a reduction in custody level.Such an objective measure, be it a polygraph, PPG, or other assessment would provide more information regarding [Benson's] overall risk level. . . .At this time, [Benson] does not meet criteria for a full discharge.

A majority of the SRB recommended denying Benson's petition.Benson sought review by the Commitment Appeal Panel(CAP) and, in doing so, also challenged the constitutionality of aspects of the MSOP system.At the first-phase hearing before the CAP, Tippett and Benson testified.At the end of that hearing, the commissioner moved, under Minn. R. Civ. P. 41.02(b), to dismiss Benson's petition because he failed to present a prima facie case for discharge.The CAP dismissed Benson's petition for discharge andstated that it could not address his constitutional challenges to the MSOP system.Benson appeals.

DECISION

I.The CAP did not err by dismissing the petition for discharge.

Whether to discharge a person committed to MSOP as an SPP or as a sexually dangerous person (SDP) is addressed by Minn. Stat. § 253D.31(2018).Construing a predecessor to that statute containing similar language to the current statute, the supreme court stated that a person can remain confined to MSOP "for only so long as he or she continues both to need further inpatient treatment and supervision for his sexual disorder and to pose a danger to the public."Call v. Gomez, 535 N.W.2d 312, 319(Minn.1995);seeIn re Commitment of Fugelseth, 907 N.W.2d 248, 253(Minn. App.2018)(applyingCall in a case involving the current statute), review denied(Minn. Apr. 17, 2018).

When addressing whether to grant a discharge from MSOP, the CAP "shall consider whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the committed person in adjusting to the community.If the desired conditions do not exist, the discharge shall not be granted."Minn. Stat. § 253D.31.Consideration of a petition has two phases:

When appearing before [the CAP], the committed person bears the burden of going forward with the evidence, which means presenting a prima facie case with competent evidence to show that the person is entitled to the requested relief.We have recently described that burden as a burden of production, which requires the committed person to come forward with sufficient, competent evidence that, if proven, would entitle the petitioner to relief.The proceeding in which a committed person produces evidence is commonly referred to as a first-phase hearing.If the committed person satisfies his burden of production, then the party opposing the petition bears the burden of proof by clear and convincing evidence that the discharge or provisional discharge should be denied.The proceeding in which the opposing party attempts to prove that the discharge petition should be denied is commonly referred to as a second-phase hearing.

Coker v. Jesson, 831 N.W.2d 483, 485-86(Minn.2013)(footnote, citations, and quotations omitted);seeMinn. Stat. § 253D.28, subd. 2(d)(2018)(addressing discharge).

After Benson's first-phase hearing, the commissioner moved, under rule 41.02(b), to dismiss Benson's petition.

On a rule 41.02(b) motion to dismiss a discharge petition at the close of a petitioner's case-in-chief, the [CAP] may not weigh the evidence or make credibility determinations regarding discharge, and instead must view the evidence in a light most favorable to the committed person.[Appellate courts] therefore review the [CAP's] dismissal of the petition for discharge de novo.

Foster v. Jesson, 857 N.W.2d 545, 549(Minn. App.2014)(citation and quotations omitted).Also, this court has rejected the idea that, "by themselves, conclusory assertions by a committed person are sufficient to avoid dismissal of a petition for discharge from MSOP."In re Civil Commitment of Poole, 921 N.W.2d 62, 69(Minn. App.2018), review denied(Minn. Jan. 15, 2019).

A.Prima facie case

Benson argues that he established a prima facie case for discharge—in fact, that he is entitled to release immediately—because the evidence at the first-phase hearing showed that he does not have a sexual disorder.

We reject Benson's argument that the evidence establishes that he does not have a sexual disorder.Benson's argument assumes that, because Tippett did not diagnose him with a sexual disorder, he does not have a sexual disorder.When Tippett was asked whether she ruled out diagnosing Benson with a paraphilic disorder, she, consistent with the SVRA, testified that "with the dearth of the evidence that I possessed, I could not rule it in or out."Thus, Benson's argument misreads both the SVRA and Tippett's testimony.Tippett's failure to diagnose Benson with a sexual disorder does not mean that Benson does not have a sexual disorder; it simply reflects his refusal to participate in therapy.

In addition, Benson's argument misapprehends the two-phase hearing process.The question at a first-phase hearing is not whether confinement should continue but whether the patient made a prima facie case for the relief sought by "com[ing] forward with sufficient, competent evidence that, if proven, would entitle the petitioner to relief."Coker, 831 N.W.2d at 485-86(quotation omitted);seePoole, 921 N.W.2d at 66(quotingCoker, 831 N.W.2d 485-86).Thus, at a first-phase hearing, the MSOP patient has the burden to affirmatively produce competent evidence that could entitle the patient to the relief sought.SeeBraylock v. Jesson, 819 N.W.2d 585, 589(Minn.2012)(stating that "presenting a prima facie case" and going "forward with the evidence" are both "synonymous with a requirement that a party meet a burden of production"(quotation marks omitted)).Here, Benson's "evidence" was the combination of Tippett not diagnosing him with a sexual disorder with his otherwise unsupported assertion that he lacks a sexual disorder.But, as explained above, Benson misreads both Tippett's SVRA and her testimony, and his unsupported assertion runs afoul of Poole's observation that, by themselves, conclusoryassertions by a committed person are insufficient to avoid dismissal of a petition for discharge from MSOP.921 N.W.2d at 69.

Moreover, apart from Benson's failure to introduce any affirmative evidence making a prima facie case for discharge, the evidence that was introduced at the...